LIVERSIDGE v ANDERSON

Reasonableness within the confines of legislation and determination of that principle, fall into varying categories; while national security under times of war, further compounds the need for subjective action, when those bestowed executive powers must act to prevent dissent without fear of reprisal, or leave themselves undermined through abuse of legal recourse.

Acting upon the terms prescribed within the Defence (General) Regulations 1939, it was decided by the Secretary of State, to issue a writ that served to detain a suspected ‘threat’ while the country was at war with Germany.

For reasons undisclosed to the appellant on principle of national safety, the individual was held in indefinite detention in Brixton prison, as an act of subversion against known factions operating to weaken the country’s defences.

After almost a year, the appellant sought to challenge the validity of the writ, contesting that his imprisonment was on fraudulent grounds, and that the above legislation conferred limited powers of issue that on this occasion, were in need of evidential support over subjective opinion.

In addition to this, he requested that there ought to be proven grounds for his incarceration, and that those reasons needed to determine the eligibility to hold him.

In the first hearing, the court dismissed his claim but granted leave to appeal; after which, the Court of Appeal also refused to support any action taken against an executive order; however, they did allow appeal to the House of Lords for purposes of exploration.

As foundation of the appeal, section 18B of the regulations read that: 

“If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.”

Defence (General) Regulations 1939

This particular aspect of legislation was now left to the House to examine in detail before establishing if, under circumstances where no written evidence had been submitted to justify the writ, the Secretary of State was liable to produce such material as to satisfy the restricted liberty of an individual innocent of any criminal wrongdoing.

While in the immediate sense it ran risk of appearing beyond reproach and without just cause, the judges fully appreciated that in times of conflict it was ultra vires for the courts to expect confidential information to be brought into view to resolve what was essentially a claim for damages under the presumption of absolute civil liberty.

Despite fully appreciating the need for personal satisfaction and the variances of reasonableness within numerous forms of English law, it was felt that within a position shouldering tremendous responsibility for the safety and welfare of both the state and the public, the phrase “has reasonable cause” was ultimately to be interpreted as subjective to the Secretary of State, and not one for those bound to his decision, before reassuring the parties that:

“In no case are ordinary legal rights to be affected unless and then only to the extent that Parliament has enacted to the contrary.”

DAVIDSON V SCOTTISH MINISTERS NO.2

The pollution of judicial impartiality was an issue raised by a prison inmate when campaigning for a transfer on grounds of Convention rights; and when faced with a verdict that ran contrary to his calculated expectations.

While serving sentence in HMP Barlinnie, Scotland, the appellant took issue with the prison when complaining that his living conditions ran counter to his rights under article 3 of the European Convention on Human Rights (ECHR) (Prohibition of torture), which explained that:

“1. No one shall be held in slavery or solitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

And so, citing that he was justified a transfer to a more suitable prison, the appellant raised a petition and an order for specific performance under a claim for damages, while further requesting that the respondents personally arrange for his transfer and compensation.

In the first instance, the Court of Session refused to issue orders against them, on grounds that section 21(a) of the Crown Proceedings Act 1947 explained that:

“(a)where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties…”

Crown Proceedings Act 1947

However, the court denied such an order, while the Extra Division followed suit for the same reasons, before the appellant was again denied recourse before the House of Lords; until the appellant discovered that one of the presiding judges (Hardie LJ) had been involved in the amendment of the 1947 Act while serving as Lord Advocate; and that his presence contributed to the inclusion of Scottish Ministers when protecting members of the Crown under section 38(2), which stated that:

“”Civil proceedings’’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King’s Bench Division;…’’Officer’’, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the forgoing provision includes a Minister of the Crown and a member of the Scottish Executive.”

Thus, the appellant alleged ‘actual bias’ within the reclaim hearing and sought a re-trial under the rule of law for the purposes of objectivity and equity; whereupon, the House of Lords referred to Porter v Magill; in which, they had held that:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

PORTER v MAGILL

And so, after careful examination of the actual degree to which Lord Hardie had been involved in the amending of the statute, the House dismissed the appeal, on grounds that the origins of that particular legislative change had stemmed directly from the mind of Donald Stewart MP, who was at the time, the Secretary of State for Scotland; and that Lord Hardie had merely been representative of those actions within his professional capacity, before clarifying for the parties that:

“[A] risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process.”

VON COLSON AND KAMANN v LAND NORDRHEIN-WESTFALEN

Sexual discrimination and the right to enforce Directive 76/207/EEC when applying for a position was unprecedented within the European Community, and so when two well-qualified female social workers applied for similar posts at the Land Nordrhein-Westfalen (a male populated prison) and were refused employment on grounds of their gender, the Arbeitsgericht Hamm (German Labour Court) referred a number of questions to the European Court of Justice under article 177 EC. 

Having referred to the principles of Directive 76/207/EEC, governing equal access to employment, training, promotion and working conditions, the claimants contended that denial of this particular post was tantamount to a breach of Member State obligations and that legal remedy should constitute either six months full pay, or the creation of another position within the offer of employment. 

However, German law had been amended to incorporate the Directive measures with a degree of discretion, inasmuch as proof of sexual discrimination within the recruitment process only provided resulting sanctions as one incurring travel costs and not those allowing compensatory damages, or the employment provision sought. 

This led to the formulation of five interrelated questions, and which asked:

1. Whether under breach of the anti-discrimination Directive, was the employer liable to provide for, and offer, employment to those parties affected? 

2. If so, was it on grounds that the claimant could provide evidence of greater qualification than those required for the position applied for?

3. Was equal competence acceptable as grounds for the provision of additional employment, or was the claimant entitled to employment irrespective of qualifying ability? 

4. Did Directive 76/207/EEC provide clear instruction as to the form of remedy awarded where discrimination occurred, but no employment was required? 

5. Could the terms of the Directive be relied upon by an individual when the discrimination was between private individuals?

When examining the exactness of the Directive, it was held by the European Court of Justice that while the effects of Community law and transposition of those Directives must observe and follow the principles expressed, where discriminatory acts are proven, the Commission did not intend that an employer was imposed with any obligation to create positions beyond those advertised. 

Thus in terms of legal clarity, the Court held that further national debate was needed in order to amend the legislation in line with a fair and balanced level of compensation, while it was also held that the terms of the Directive were too ambiguous as to offer individual powers to enforce against another party where such provisions were not already in place, before reminding the parties that:

“[D]irective No.76/207 does not require discrimination on grounds of sex regarding access to employment to be made the subject of a sanction by way of an obligation imposed upon the employer who is the author of the discrimination to conclude a contract of employment with the candidate discriminated against.”